AMENDMENT NO. 2 TO
AMENDED AND RESTATED PARTICIPATION AGREEMENT
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin/Xxxxxxxxx Distributors, Inc.
Commonwealth Annuity and Life Insurance Company
Epoch Securities, Inc.
Franklin Xxxxxxxxx Variable Insurance Products Trust (the "Trust"),
Franklin/Xxxxxxxxx Distributors, Inc. (the "Underwriter," and together with the
Trust, "we" or "us"), Commonwealth Annuity and Life Insurance Company (the
"Company" or "you"), on your behalf and on behalf of certain Accounts, have
previously entered into an Amended and Restated Participation Agreement dated
September 25, 2006 and subsequently amended June 5, 2007 (the "Agreement"). The
parties now desire to amend the Agreement by this amendment (the "Amendment").
Except as modified hereby, all other terms and conditions of the Agreement
shall remain in full force and effect. Unless otherwise indicated, the terms
defined in the Agreement shall have the same meaning in this Amendment.
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend the Agreement as follows:
1. Epoch Securities, Inc, the principal underwriter of the Company, is hereby
added as a party to the Agreement (the "Distributor").
2. The term "National Association of Securities Dealers, Inc. (the "NASD") is
hereby replaced with "Financial Industry Regulatory Authority ("FINRA")"
throughout the Agreement in sections 2.1.6, 2.3.1, 10.7, 10.8 and Schedule
F, respectively.
3. Section 10.12 is amended and restated in its entirety as follows:
"10.12 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by
both parties. Notwithstanding the foregoing: (i) the Site Terms may be
separately amended as provided therein and, as so amended and in effect
from time to time, shall be a part of this Agreement; and (ii) Schedule C
may be separately amended as provided therein and, as so amended shall be a
part of this Agreement."
4. Schedules A, B, C, D, F and G of the Agreement are deleted and replaced in
their entirety with the Schedules A, B, C, D, F and G attached hereto,
respectively.
IN WITNESS WHEREOF, each of the parties has caused its duly authorized
officers to execute this Amendment effective as of May 1, 2009.
The Trust: FRANKLIN XXXXXXXXX VARIABLE INSURANCE
PRODUCTS TRUST
ONLY ON BEHALF OF
EACH PORTFOLIO LISTED
ON SCHEDULE C OF
THE AGREEMENT. By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
The Underwriter: FRANKLIN/XXXXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
The Company: COMMONWEALTH ANNUITY AND LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President and Chief Executive Office
The Distributor: EPOCH SECURITIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
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SCHEDULE A
THE COMPANY AND ITS DISTRIBUTOR
THE COMPANY
Commonwealth Annuity and Life Insurance Company
000 Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxxx 00000
A life insurance company organized under the laws of the Commonwealth of
Massachusetts
THE DISTRIBUTOR
Epoch Securities, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxxx 00000
A corporation organized under the laws of the State of Delaware.
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SCHEDULE B
ACCOUNTS OF THE COMPANY
SEC REGISTRATION
NAME OF ACCOUNT YES/NO
----------------------------------------------------------------------- ----------------
1. Separate Account FUVUL of Commonwealth Annuity and Life Insurance Yes
Company
2. Separate Account VA-P of Commonwealth Annuity and Life Insurance Yes
Company
3. Separate Account VA-K of Commonwealth Annuity and Life Insurance Yes
Company
4. Commonwealth Annuity Select Separate Account of Commonwealth Yes
Annuity and Life Insurance Company
5. Group VEL Separate Account of Commonwealth Annuity and Life Yes
Insurance Company
6. VEL Account of Commonwealth Annuity and Life Insurance Company Yes
7. VEL II Separate Account of Commonwealth Annuity and Life Insurance Yes
Company
8. Inheiritage Separate Account of Commonwealth Annuity and Life Yes
Insurance Company
9. VEL III Separate Account of Commonwealth Annuity and Life Yes
Insurance Company
10. Commonwealth Annuity Select Separate Account III of Commonwealth Yes
Annuity and Life Insurance Company
11. Commonwealth Annuity Select Separate Account II of Commonwealth Yes
Annuity and Life Insurance Company
12. Separate Account IMO of Commonwealth Annuity and Life Insurance Yes
Company
13. Separate Account A of Commonwealth Annuity and Life Insurance Yes
Company
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SCHEDULE C
AVAILABLE PORTFOLIOS AND CLASSES OF SHARES OF THE TRUST
1. Franklin Global Communications Securities Fund, Class 2
2. Franklin Growth and Income Securities Fund, Class 2
3. Franklin Income Securities Fund, Class 2
4. Franklin Large Cap Growth Securities Fund, Class 2
5. Franklin Small-Mid Cap Growth Securities Fund, Class 2
6. Franklin Small Cap Value Securities Fund, Class 2
7. Mutual Discovery Securities Fund, Class 2
8. Mutual Shares Securities Fund, Class 2
9. Templeton Developing Market Securities Fund, Class 2
10. Xxxxxxxxx Foreign Securities Fund, Class 2
11. Templeton Global Asset Allocation Fund, Class 2
12. Xxxxxxxxx Growth Securities Fund, Class 2
In addition to portfolios and classes of shares listed above, any additional
Portfolios and classes of shares other than Class 3 shares are included in this
Schedule C listing provided that:
(1) the General Counsel of Franklin Xxxxxxxxx Investments receives from a
person authorized by you a written notice in the form attached (which
may be electronic mail or sent by electronic mail) ("Notice")
identifying this Agreement as provided in the Notice and specifying:
(i) the names and classes of shares of additional Portfolios that you
propose to offer as investment options of the Separate Accounts under
the Contracts; and (ii) the date that you propose to begin offering
Separate Account interests investing in the additional Portfolios
under the Contracts; and
(2) we do not within ten (10) Business Days following receipt of the
Notice send you a writing (which may be electronic mail) objecting to
your offering such Separate Accounts investing in the additional
Portfolios and classes of shares under the Contracts.
Provided that we do not object as provided above, your Notice shall amend,
supplement and become a part of this Schedule C and the Agreement.
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FORM OF NOTICE PURSUANT TO SCHEDULE C OF
PARTICIPATION AGREEMENT
To: General Counsel c/o
Xxxxx Xxx (Xxxx@xxx.xxx;) or Xxxxx Xxxxxxxx (xxxxxxx@xxx.xxx)
Fax: 000 000-0000
Franklin Xxxxxxxxx Investments
0 Xxxxxxxx Xxxxxxx,
Xxxx. 000, 0xx Xxxxx
Xxx Xxxxx, XX 00000
With respect to the following agreement(s) (collectively, the "Agreement")
(please reproduce and complete table for multiple agreements):
DATE OF
PARTICIPATION AGREEMENT:
INSURANCE COMPANY(IES):
INSURANCE COMPANY DISTRIBUTOR(S):
As provided by Schedule C of the Agreement, this Notice proposes to Franklin
Xxxxxxxxx Variable Insurance Products Trust, and Franklin/Xxxxxxxxx
Distributors, Inc. the addition as of the offering date(s) listed below of the
following Portfolios as additional investment options listed on Schedule C:
NAMES AND CLASSES OF SHARES OF ADDITIONAL PORTFOLIOS OFFERING DATE(S)
---------------------------------------------------- ----------------
Listing of current classes for your reference:
Class 1 (no 12b-1 fee);
Class 2 (12b-1 fee of 25 bps); or
Class 4 (12b-1 fee of 35 bps).
NAME AND TITLE OF AUTHORIZED PERSON OF INSURANCE COMPANY:
CONTACT INFORMATION:
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SCHEDULE D
CONTRACTS OF THE COMPANY
All variable life and variable annuity contracts issued by separate accounts
listed on Schedule B of this Agreement.
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SCHEDULE F
RULE 12B-1 PLANS OF THE TRUST
COMPENSATION
Each Class 2 or Class 4 Portfolio named or referenced on Schedule C of this
Agreement may make payments at a rate stated in its prospectus pursuant to the
terms and conditions of its Rule 12b-1 distribution plan.
AGREEMENT PROVISIONS
If the Company, on behalf of any Account, purchases Trust Portfolio shares
("Eligible Shares") that are subject to a Rule 12b-1 plan adopted under the 1940
Act (the "Plan"), the Company, on behalf of its Distributor, may participate in
the Plan.
To the extent the Company or its affiliates, agents or designees
(collectively "you") provide any activity or service that is primarily intended
to assist in the promotion, distribution or account servicing of Eligible Shares
("Rule 12b-1 Services") or variable contracts offering Eligible Shares, the
Underwriter, the Trust or their affiliates (collectively, "we") may pay you a
Rule 12b-1 fee. "Rule 12b-1 Services" may include, but are not limited to,
printing of prospectuses and reports used for sales purposes, preparing and
distributing sales literature and related expenses, advertisements, education of
dealers and their representatives, and similar distribution-related expenses,
furnishing personal services to owners of Contracts which may invest in Eligible
Shares ("Contract Owners"), education of Contract Owners, answering routine
inquiries regarding a Portfolio, coordinating responses to Contract Owner
inquiries regarding the Portfolios, maintaining such accounts or providing such
other enhanced services as a Trust Portfolio or Contract may require, or
providing other services eligible for service fees as defined under FINRA rules.
Your acceptance of such compensation is your acknowledgment that eligible
services have been rendered. All Rule 12b-1 fees, shall be based on the value of
Eligible Shares owned by the Company on behalf of its Accounts, and shall be
calculated on the basis and at the rates set forth in the compensation provision
stated above. The aggregate annual fees paid pursuant to each Plan shall not
exceed the amounts stated as the "annual maximums" in the Portfolio's
prospectus, unless an increase is approved by shareholders as provided in the
Plan. These maximums shall be a specified percent of the value of a Portfolio's
net assets attributable to Eligible Shares owned by the Company on behalf of its
Accounts (determined in the same manner as the Portfolio uses to compute its net
assets as set forth in its effective Prospectus). The Rule 12b-1 fee will be
paid to you within thirty (30) days after the end of the three-month periods
ending in January, April, July and October.
You shall furnish us with such information as shall reasonably be requested
by the Trust's Boards of Trustees ("Trustees") with respect to the Rule 12b-1
fees paid to you pursuant to the Plans. We shall furnish to the Trustees, for
their review on a quarterly basis, a written report of the amounts expended
under the Plans and the purposes for which such expenditures were made.
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The Plans and provisions of any agreement relating to such Plans must be
approved annually by a vote of the Trustees, including the Trustees who are not
interested persons of the Trust and who have no financial interest in the Plans
or any related agreement ("Disinterested Trustees"). Each Plan may be terminated
at any time by the vote of a majority of the Disinterested Trustees, or by a
vote of a majority of the outstanding shares as provided in the Plan, on sixty
(60) days' written notice, without payment of any penalty, or as provided in the
Plan. Continuation of the Plans is also conditioned on Disinterested Trustees
being ultimately responsible for selecting and nominating any new Disinterested
Trustees. Under Rule 12b-1, the Trustees have a duty to request and evaluate,
and persons who are party to any agreement related to a Plan have a duty to
furnish, such information as may reasonably be necessary to an informed
determination of whether the Plan or any agreement should be implemented or
continued. Under Rule 12b-1, the Trust is permitted to implement or continue
Plans or the provisions of any agreement relating to such Plans from
year-to-year only if, based on certain legal considerations, the Trustees are
able to conclude that the Plans will benefit each affected Trust Portfolio and
class. Absent such yearly determination, the Plans must be terminated as set
forth above. In the event of the termination of the Plans for any reason, the
provisions of this Schedule F relating to the Plans will also terminate. You
agree that your selling agreements with persons or entities through whom you
intend to distribute Contracts will provide that compensation paid to such
persons or entities may be reduced if a Portfolio's Plan is no longer effective
or is no longer applicable to such Portfolio or class of shares available under
the Contracts.
Any obligation assumed by the Trust pursuant to this Agreement shall be
limited in all cases to the assets of the Trust and no person shall seek
satisfaction thereof from shareholders of the Trust. You agree to waive payment
of any amounts payable to you by Underwriter under a Plan until such time as the
Underwriter has received such fee from the Trust.
The provisions of the Plans shall control over the provisions of the
Participation Agreement, including this Schedule F, in the event of any
inconsistency. You agree to provide complete disclosure as required by all
applicable statutes, rules and regulations of all rule 12b-1 fees received from
us in the prospectus of the Contracts.
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SCHEDULE G
ADDRESSES FOR NOTICES
To the Company: Commonwealth Annuity and Life Insurance Company
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxx, President and CEO
To the Distributor: Epoch Securities, Inc.
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, President
To the Trust: Franklin Xxxxxxxxx Variable Insurance Products Trust
Xxx Xxxxxxxx Xxxxxxx, Xxxx. 000 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Vice President
To the Underwriter: Franklin/Xxxxxxxxx Distributors, Inc.
000 Xxxxxxxx Xxxxxxx, 0xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx, President
If to the Trust or Underwriter
with a copy to: Franklin Xxxxxxxxx Xxxxxxxxxxx
Xxx Xxxxxxxx Xxxxxxx, Xxxx. 000 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
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